Opinion
D073868
08-06-2018
THE PEOPLE, Plaintiff and Respondent, v. LARON CLIFFORD CURTIS, Defendant and Appellant.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Stacy A. Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. INF1600384 ) APPEAL from a judgment of the Superior Court of Riverside County, Irma Poole Asberry, Judge. Affirmed. Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Stacy A. Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Laron Clifford Curtis guilty of inflicting corporal injury on a person with whom the defendant had a current or former dating relationship (Pen. Code, § 273.5, subd. (a); count 2). The jury also found true that Curtis personally inflicted great bodily injury on the victim within the meaning of sections 12022.7, subdivision (e) and 1192.7, subdivision (c). After the jury's verdict, the court denied Curtis's motion for a new trial.
Statutory references are to the Penal Code unless otherwise specified.
The jury found Curtis not guilty of kidnapping (§ 297, subd. (a); count 1) and unlawfully taking or driving a vehicle with a prior conviction for that same crime (§ 666.5, subd (a); Veh. Code, § 10851, subd. (a); count 3).
In a bifurcated proceeding, the court found true that Curtis had suffered three serious and violent felony prior convictions (§ 667, subd. (c), (e)(1); § 1170.12, subd. (c)(1)); one serious prior felony conviction (§ 667, subd. (a)); and one prison prior (§667.5, subd. (b)).
The court sentenced Curtis to prison for 33 years to life, consisting of 25 years to life on count 2, three years for the great bodily injury enhancement, and five years for the serious felony prior conviction.
Curtis appeals, contending the trial court committed reversible error by failing to instruct the jury regarding the definition of "dating relationship" as the term applies to a violation of section 273.5, subdivision (a). In addition, he claims the court abused its discretion in denying his motion for a new trial. We conclude Curtis's arguments lack merit. As such, we affirm.
FACTUAL BACKGROUND
Around 10:30 p.m. on January 23, 2016, Jane Doe sought medical treatment at an emergency room in Rancho Mirage. She told the treating physician that she got into an argument with a friend, who ripped her pants and punched her in the face. Doe's orbital socket was fractured, and the nerve controlling vertical movement of the eye was infringed.
Doe's son, whom she summoned to the emergency room, reported a possible domestic violence incident to law enforcement. Riverside County Sheriff's Department Deputy Billy Jordan responded to the call. Jordan found Doe "[v]isibly shaken [and] upset." Her face was swollen, bruised, lacerated, bloody, and scraped, and she seemed frightened. Jordan photographed Doe's injuries while she told him what happened.
The recording was played for the jury at trial after Doe's testimony differed substantially from what she told Jordan.
Doe said she was in her truck with Curtis, who was driving. Curtis was angry because he believed Doe had recently performed oral sex on her estranged husband. When Doe denied this, Curtis grabbed her mobile telephone, threw it at her face, and then began punching her in the face.
Doe screamed and opened the passenger side door and tried to jump out of the truck, but Curtis grabbed her, pulled her back in, told her to "shut up," and resumed punching her in the face. Doe began to have difficulty breathing. Curtis pulled to the side of the road and told Doe to get out of the truck. Doe complied, but then a police car drove by. Curtis told Doe to get back in the car, put on her seat belt, and "not say a word."
Curtis drove to the emergency room. He drove around the parking lot while Doe pleaded with him to let her out of the truck. Finally, Curtis let Doe out and drove away.
Doe told Jordan she and Curtis "[ha]ve been dating since August [2015]." She asked the deputy to help her get a restraining order against Curtis.
At trial, Doe testified she and Curtis were not dating as of January 23, 2016. Instead, they were just "friends," which explained the presence of Curtis's belongings in her truck. The night of January 23, while driving Doe's truck, Curtis accused Doe of performing oral sex on her estranged husband. He threw Doe's cell phone at the dashboard, and it bounced off and struck Doe in the face near her hairline. Doe became upset; so, she "just started swinging, just throwing punches." Curtis tried to block her punches, and somehow, Doe "got hit" in the eye.
Doe said she then tried to jump out of the car. Curtis grabbed her and pulled her back to safety, accidentally ripping her pants in the process. Curtis pulled over to the side of the road, told Doe to calm down, and handed Doe her asthma inhaler. Then he drove her to the hospital.
Doe admitted she told Jordan that Curtis threw the phone at her face and punched her repeatedly, that she tried to escape but he grabbed her and punched her again, and that he put her out on the street and only let her back into the truck when someone drove by. She also admitted she told the emergency room doctor she was punched in the face. However, Doe testified she said these things and asked for the restraining order because she was angry.
When the prosecutor asked Doe about an abrasion on her forehead that Jordan documented the night of the attack, Doe said she "would almost say positively [she] probably did it to [her]self." She surmised she cut herself with her nails when she was trying to punch Curtis and get out of the truck.
Doe further testified that as of the time of trial, she and Curtis were merely "friends." She admitted, however, that she and Curtis spoke several times a week. She also testified that she: (1) loves Curtis, (2) did not want to testify, and (3) told Curtis she planned to move from place to place to avoid being subpoenaed to testify. Doe admitted at trial that she would do everything she could to make the situation "right" as to Curtis.
In addition, Doe stated that she told a victim advocate in April 2016 that she did not want to testify against Curtis because he was dangerous, and she feared for her life and the safety of her family. Questioned by defense counsel, however, Doe claimed that what she meant was that she was merely scared to face the consequences of her own actions.
The prosecution introduced, and the court admitted into evidence, the recordings of several telephone calls between Curtis and Doe in July and August 2016 while he was in jail awaiting trial. In the first call, Curtis told Doe to "stay out of dodge." He also said, "[W]hen it's time for the trial[] don't show up at all, babe. At all, you hear me?" When Doe assured him she would not appear in court, Curtis reiterated, "At all."
Curtis also told Doe that if she were to be subpoenaed and should appear in court, then she was to refuse to testify with the possibility the court would hold her in contempt and send her to jail for "a couple days." She agreed that she was willing to go to jail for Curtis. Doe repeatedly expressed her need of Curtis. He told her, "You already know what to do[.]"
In the next call, Curtis told Doe that the domestic violence charge assumed they were in a romantic relationship. Thus, Curtis told Doe, "[W]e stop seeing each other . . . back in 2015 . . . so this just a regular person, you know what I'm saying?" Doe agreed. Curtis said that if Doe wanted an exact date they stopped "seeing each other," it was "October or November" of 2015. That way, he said, "at the time of the incident, we just friends." Doe asked, "That takes that away?" Curtis said, "And that takes that away. Because we not . . . girlfriends, boyfriends, you know what I'm saying?" Doe answered, "Right."
The other calls were similar, with Curtis telling Doe not to cooperate with the prosecutor and encouraging her to avoid being subpoenaed, and Doe assuring him she was doing her best, even suggesting to her estranged husband that he not appear at trial if subpoenaed. She told him, "You know I'll go to jail for you." Doe also assured Curtis she was funding his telephone charge card so the two of them could remain in contact.
In addition, the prosecution offered evidence that Curtis had a previous domestic violence incident. In May 2003, Curtis separated from his wife, Jane Roe. On May 24, 2003, Curtis appeared unannounced at Roe's house, armed with a crowbar, and forced her into her own car, wherein the couple's two minor daughters and a cousin were seated.
While Curtis was going around to the driver's side door, Roe locked the car's doors. Curtis smashed the driver's side window with the crowbar, got into the car, and began driving. As he drove away, he punched Roe repeatedly in the head with a closed fist, saying, "This is [until] death do us part." Roe interpreted Curtis's comment as an indication that he was going to kill her.
When Curtis stopped the car to let the children out, Roe jumped out of the car and ran into the middle of the street. Curtis followed her. Roe fell down. Curtis put the crowbar to her chest and threatened her. After bystanders began to yell and police sirens could be heard, Curtis got into Roe's car and drove away.
DISCUSSION
I
JURY INSTRUCTIONS
A. Curtis's Assertions
Curtis argues the court committed prejudicial error by not defining the term "dating relationship" when instructing the jury about the elements of the offense charged in count 2. The People counter that Curtis forfeited this challenge by not requesting an additional instruction defining "dating relationship" at trial. The People make the better argument. Further, in evaluating forfeiture below, we determine that the trial court properly instructed the jury and Curtis's substantive rights were not violated.
B. Background
When discussing jury instructions, the court asked Curtis's trial counsel if he had a chance to review the prosecution's proposed instruction for count 2. In response, defense counsel merely said, "Submit." The court subsequently instructed the jury, regarding count 2, pursuant to CALCRIM No. 840, as follows:
"840, Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition: The defendant is charged in Count 2 with inflicting an injury on his former partner that resulted in a traumatic condition, in violation of Penal Code Section 273.5(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: One, the defendant willfully and unlawfully inflicted a physical injury on someone with whom he had or previously had a dating relationship; and 2, the defendant inflicted -- excuse me -- the injury inflicted by the defendant resulted in a traumatic condition; and three, the defendant did not act in self-defense. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] A traumatic condition is a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force."
The trial court also instructed the jury regarding the lesser included offense of count 2:
"841, Simple Battery Against Spouse, Cohabitant, or Fellow Parent: Battery against a person with whom the defendant currently has or previously had a dating relationship, in violation of Penal Code Section 243(e)(1), is a lesser included offense of Count 2. [¶] . . . [counsel approach the bench, off the record discussion among court and counsel, on the record discussion among court and counsel] [¶] . . . To prove that the defendant is guilty of this crime, the People must prove that: One, the defendant willfully and unlawfully touched Jane Doe in a harmful or offensive manner; two, Jane Doe is a person with whom the defendant currently or previously had a dating relationship; and three, the defendant did not act in self-defense. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] The slightest touching can be enough to commit battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. [¶] The touching does not have to cause pain or injury of any kind. [¶] The touching can be done indirectly by causing an object to touch the other person. [¶] The term dating relationship means frequent, intimate association
primarily characterized by the expectation of affection or sexual involvement independent of financial considerations." (Italics added.)
C. Analysis
In the instant matter, it is undisputed that Curtis did not ask the trial court to define "dating relationship" regarding its instruction about the elements of count 2 (CALCRIM No. 840). This is the only error relating to jury instructions of which Curtis complains here. However, by failing to request a specific jury instruction at trial, Curtis forfeited this claim on appeal, unless the claimed error affected Curtis's substantial rights. (People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) We conclude that Curtis has not shown that the claimed error affected his rights; thus, he has forfeited his claim.
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In determining whether error has been committed in giving jury instructions, we consider the instructions as a whole and assume jurors are intelligent persons, capable of understanding and correlating all jury instructions which are given. (Ibid.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (Ibid.)
Section 273.5, subdivision (a) provides: "Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony[.]" Among other individuals who could be a victim under subdivision (a), subdivision (b) states a victim could be "someone with whom the offender has, or previously had . . . [a] dating relationship as defined in paragraph (10) of subdivision (f) of Section 243. (§ 273.5, subd. (b)(3).) Under section 243, subdivision (f)(10), " 'Dating Relationship' means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations."
At trial, the court provided the jury with a definition of "dating relationship" that mirrors the one found in subdivision (f)(10) of section 243. It did so after instructing the jury on the elements of the offense charged in count 2 and the elements of the lesser included offense (simple battery against spouse, cohabitant, or fellow parent). However, Curtis now argues the court's definition of "dating relationship" was not sufficient because the jury might have determined that he was guilty under count 2 without ever having considered the lesser included offense. To this end, he points out that the court informed the jurors that it was "up to [them] to decide the order in which [they] considere[d] each crime[.]" Curtis therefore argues "there is no reason to assume the jury considered" the court's definition of "dating relationship." We are not persuaded.
There is no indication in the record that the court instructed the jury to ignore any of its instructions. Moreover, the court did not limit the definition of "dating relationship" to only apply to the elements of the lesser included offense of simple battery. To the contrary, the definition of "dating relationship" was provided to the jury immediately after the court instructed the jury regarding the elements of a violation of section 273.5, subdivision (a) and its lesser included offense, both of which included the term "dating relationship." There is nothing in the instructions given by the court that would have caused the jurors, as intelligent persons capable of understanding and correlating the instructions given (People v. Ramos, supra, 163 Cal.App.4th at p. 1088), to be confused as to the definition of "dating relationship" as the term was used in CALCRIM No. 840. In short, the court did not err in instructing the jury.
In addition, the issue of whether Curtis and Doe had been in a dating relationship was not contested at trial. Doe testified at trial that she had dated Curtis for about three or four months in 2015. She also admitted that she still loves Curtis and would do anything to help Curtis (or as Doe clarified, "To make this right"). During her interview with Deputy Jordan, she told him that she had been dating Curtis since August 2015 (she did not indicate that they were no longer dating). Also, the catalyst that set off Curtis's violent outburst was his belief that Doe recently performed oral sex on her estranged husband. The jury could reasonably infer that Curtis's angry response was consistent with one who was in a "dating relationship" with Doe.
Further, during closing argument, the prosecutor asserted, regarding count 2, there was no "controversy" that Doe and Curtis "had engaged in a physical dating relationship." During his closing argument, defense counsel did not challenge that assertion by the prosecutor. Instead, defense counsel emphasized that Curtis was not guilty under count 2 because he was acting in self-defense. Counsel further focused on Doe's lack of credibility and conflicting version of events. Additionally, counsel ended his closing statement by asking the jury to find Curtis not guilty under counts 1 through 3, but guilty of the lesser included offense of domestic battery. In doing so, Curtis's counsel was all but conceding that the prosecution had shown that Doe and Curtis were in a "dating relationship."
Against this backdrop, we conclude that the claimed instructional error did not affect Curtis's substantive rights; thus, he has forfeited his challenge here. (People v. Flood, supra, 18 Cal.4th at p. 482, fn. 7.) Nevertheless, to avoid forfeiture, Curtis argues his counsel was constitutionally ineffective for not requesting an instruction defining "dating relationship" immediately after the elements of count 2 or specifically referring to count 2. We conclude Curtis has not met his burden to establish ineffective assistance of counsel.
To show that trial counsel's performance was constitutionally defective, an appellant must prove: (1) counsel's performance fell below the standard of reasonableness, and (2) the "deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Competency is presumed unless the record affirmatively excludes a rational basis for trial counsel's choice. (People v. Ray (1996) 13 Cal.4th 313, 349; People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)
Here, the record does not support Curtis's argument that his trial counsel's performance fell below the standard of reasonableness. As we discuss above, the jury was correctly instructed, suggesting that there was nothing defective about defense counsel not asking for another instruction defining "dating relationship" when the instructions provided to the jury already included such a definition.
In addition, the record here does not allow us to evaluate Curtis's claim of ineffective assistance of counsel. All we know from this record is that Curtis's counsel did not request an additional instruction to define "dating relationship" explicitly within the context of the elements of count 2. We cannot simply assume ineffective representation without a record that shows trial counsel's reasoning. Perhaps defense counsel believed that the phrase "dating relationship" was adequately defined by the definition provided after the lesser included offense instruction. Or maybe Curtis's trial counsel made the strategic decision not to focus on the "dating relationship" element of count 2 because the undisputed evidence showed Curtis and Doe had a romantic and physical relationship in the past if not at the time of trial. As such, he did not want another instruction defining "dating relationship" when the instructions provided to the jury already included one. We generally defer to the tactical decisions of trial counsel. (See People v. Scott (1997) 15 Cal.4th 1188, 1212; People v. Holt (1997) 15 Cal.4th 619, 703.) Here, there is nothing in the record that supports Curtis's claim that by failing to request an additional instruction defining "dating relationship," defense counsel's performance fell below the standard of reasonableness or was prejudicial. Accordingly, we conclude that Curtis's claim of ineffective counsel is without merit.
An appellate court generally cannot fairly evaluate counsel's performance at trial based on a silent record. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) If Curtis believes his trial counsel was constitutionally ineffective, he can make that argument in a petition for writ of habeas corpus. (Ibid.)
II
MOTION FOR NEW TRIAL
A. Curtis's Assertions
Curtis argues the trial court abused its discretion in denying his motion for a new trial. Specifically, Curtis claims the prosecution did not provide him with five additional recorded jailhouse calls from Curtis to Doe until after trial, and that these recorded calls constitute "newly discovered evidence" under section 1181, subdivision 8, warranting a new trial. Curtis also contends the denial of his motion for a new trial violated his constitutional right to due process of law. We reject these contentions.
B. Background
After the jury returned its verdict, Curtis moved, under section 1181, subdivision (8), for a new trial because of newly discovered evidence. In his motion, Curtis represented that the prosecution provided hundreds of jail calls to the defense two days before trial. Portions of seven of those calls were admitted into evidence at trial. However, eight days before the scheduled sentencing of Curtis, the prosecution provided defense counsel with five additional jail telephone call recordings that took place between May 29, 2016 and June 13, 2016. Curtis claimed these five additional recordings constituted newly discovered evidence. He submitted audio copies of the recordings to the court and attached transcripts of the recordings to his motion.
Section 1181, subdivision 8 states: "When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable."
The prosecution provided these recordings in connection with another case pending against Curtis.
The transcripts of the five recordings indicate the following: On May 29, 2016, Curtis made a call to Doe, but there was no recorded conversation. On June 1, 2016, Doe told Curtis she loved him. He responded that he loved her. She said she planned to visit him. On June 11, 2016, Curtis urged Doe to send him money, and Doe promised to do so. Curtis and Doe talked about their mutual desire to engage in physical intimacy. They also expressed their love for each other. Doe told Curtis that she would "hang in there as long as [she had] to [be]cause [Curtis was] worth it." She also said that she would "flip out in the courtroom." On June 13, 2016, Doe and Curtis again discussed Doe providing Curtis with money in jail. Doe asked Curtis if it would help if she would "flip the fuck out." Curtis told her to "save that for later on" because she had surgery the next day, but advised her that she could "still get sassy with [her] mouth[.]" Doe also told Curtis that a lawyer told her that she had to show up to the preliminary hearing if she was subpoenaed, but she did not have to testify. Curtis and Doe again professed their love for each other. On June 15, 2016, Doe was upset that she was not permitted to visit Curtis in jail anymore. She said she was trying to get the restraining order "lifted." Curtis asked Doe if she had "put the money on [his] book[,]" and Doe responded that she had. Curtis expressed his extreme displeasure at the prosecutor and called her derogatory names. Curtis and Doe flirted with each other and conveyed their love for one another.
After considering the motion and the opposition as well as entertaining oral argument, the trial court denied the motion. The court explained its reasoning in detail:
"The tentative is the order of the Court. I am denying the motion for new trial. The five jail calls that were turned over by the People to the defense post-trial were with regard to matters related to prosecution of the defendant in another case. It obviously happens that those five calls were jail calls between the defendant here and the victim in this case.
"In ruling on a motion for new trial that's based on newly discovered evidence, the Court is right to consider the following factors: One, that the evidence and not merely -- that the evidence and not merely its materiality be newly discovered; two, that the evidence is not cumulative; three, that the evidence is such that it would render a different result probable on a retrial of the cause; and four, that the party, the moving party, could not, with reasonable diligence, have discovered or produced this information at trial. And actually, there is a fifth. And five, that the facts are shown by the best evidence of which the case admits.
"Here, these jail calls I do not find are newly discovered evidence because they are the statement of the defendant. Defendant knew he had, in fact, made these statements.
"I am persuaded by the points and authorities that the People have given. The reason for the requirement of newly discovered evidence, the People have cited the case of People vs. Clauson, C-1-a-u-s-o-n, a 1969 case found at 275 Cal.App.2d 699, specifically page 704, that the reason for the requirement is founded upon public policy which demands that a litigant exhaust every reasonable effort to produce at his trial all existing evidence in his own behalf to the end that the litigation be concluded. Evidence that could have been brought out through diligent cross-examination is insufficient to support a motion for new trial.
"We had Ms. Jane Doe on the witness stand for quite a while. There were quite a number of jail calls between Mr. Curtis and Jane Doe. We spent a lot of time talking about that.
"There's no question in my head that the defendant himself knew that there had been a lot of calls between himself and Jane Doe. In fact, the defendant is not even disputing that he was party to these five calls.
"So it is clear that within the tenor of People vs. Greenwood that's cited by the People that these are facts that were within the knowledge of the defendant at the time of trial, and, therefore, they're not newly discovered, even though he may not have made them known to his attorney until later.
"I don't know what level of calls were discussed between Mr. Curtis and his attorney, but with regard to the jail calls, it's clear that there is a lot of statements that were made, and it's clear that Mr. Curtis knew that he had an ongoing run of conversations -- jail call conversations between himself and Jane Doe.
"The argument that the sheriff's office didn't restrict Mr. Curtis from having any contact with Jane Doe, that is not persuasive and not relevant really to these proceedings.
"Jane Doe never testified that she had refused communications with Mr. Curtis. In fact, her testimony during trial was consistent with the fact that she voluntarily received regular phone calls from him and that she looked forward to those calls.
"The jail calls - I did read the transcript. I do find that they are cumulative, and they're not material because they don't tend to corroborate the defendant's guilt. They substantially corroborate the testimony that we already received from Jane Doe during these proceedings.
"At trial, Jane Doe testified that -- about the issues of discussing facts with her attorney. She testified that she had lied to the police. She was angry. She testified that she did lose her temper. She testified -- she was, in fact, impeached with some prior statements that she made to law enforcement.
"The jail calls were played for the jurors as well, although I did a heavy amount of redacting of those jail calls to remove items that I thought had to be excluded under the rules of evidence and that I found prejudicial to Mr. Curtis.
"There is nothing by Jane Doe as she started to testify to cause me to find that there is anything that was -- that as I look at her testimony given at trial and look at the statements made in the jail calls that would offer anything substantially different to the jurors for which they could get to some different determination. They're not getting anything different than what was testified to at the trial.
"And I do think that the calls just corroborate what Jane Doe says. They corroborate certainly a violation of a protective order that Mr. Curtis was, in fact, himself placing the collect calls to Jane Doe. But again, she wasn't -- she didn't deny she received the calls. She didn't indicate that she was in any way under duress in receiving those calls. But that wasn't a determinative factor.
"The jury did get to hear Jane Doe, did get to hear the jail calls, and the jury did make some credibility evaluations about her statements and obviously had other physical evidence to look at as they were making their determinations.
"I agree with [defense counsel]. I'm going to use your words back to you. You gave me the phrase as you talked about the time the jury took to deliberate on these things, and you said the decision was well thought out. I do agree with that. So I don't find that the calls were -- are material. I did find, as I said just a moment ago, that they are cumulative.
"And for those reasons, I am denying the defendant's motion for new trial."
C. Standard of Review and the Law
Section 1181, subdivision 8 provides that the trial court may grant a new trial motion "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." (§ 1181, subd. 8.) Applying this provision, our Supreme Court has held:
"In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ' "1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits." ' " (People v. Delgado (1993) 5 Cal.4th 312, 328.)The trial court may consider the credibility as well as the materiality of the proffered new evidence. (Id. at p. 329.)
A trial court's denial of a motion for a new trial will not be disturbed absent a "clear showing of a manifest and unmistakable abuse of discretion." (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1151; People v. Hall (2010) 187 Cal.App.4th 282, 298 ["A trial court's determination of a motion for a new trial ' " 'will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.' " ' "].) If supported by the evidence, we must accept the trial court's credibility determinations and findings of fact. (People v. Verdugo (2010) 50 Cal.4th 263, 308.)
D. Analysis
On appeal, Curtis challenges three of the trial court's conclusions. He maintains the court abused its discretion in denying his motion for a new trial because: (1) the five recordings were new evidence; (2) the new evidence was not cumulative; and (3) a different result would have been probable had the recordings been admitted in a new trial. We are not persuaded.
Curtis asserts the five recordings were not cumulative of other evidence presented at trial because they "support the inference that [Doe] was remorseful about lying to police and that her refusal to testify at the preliminary hearing was based on advice of counsel not pressure from [Curtis]." However, the trial court found, and we agree, that the calls simply corroborated Doe's trial testimony. For example, she admitted that she was not truthful when she talked to Deputy Jordan about the subject incident. And when asked why she did not want to testify at trial, she responded, "Because it's not easy to admit I was wrong and what I did was wrong." Thus, Doe admitted that she was remorseful for allegedly lying to Jordan. In addition, Doe stated that she did not testify at the preliminary hearing because her attorney told her that she did not have to do so. Also, she testified that Curtis did not influence her decision to refrain from testifying at the preliminary hearing.
In considering Doe's trial testimony, clearly the five recordings were cumulative of evidence presented to the jury. Curtis does not even address Doe's trial testimony whatsoever. He simply ignores it and asserts the five recordings are not cumulative. That is not an effective argument.
Similarly, we are not persuaded by Curtis's assertion that a different result was probable after a retrial. (People v. Sousa (1967) 254 Cal.App.2d 432, 435 [concluding the new evidence must be such as to render a different verdict reasonably probable on a new trial].) Curtis merely concludes that there was the possibility of a different result because it was a close case (the jury deliberated for multiple days and acquitted him on two of the three counts). Yet, Curtis does not explain how the five recordings, which are cumulative of other trial evidence, would have rendered a different result probable on retrial. Alternatively stated, the jury already heard the very evidence that Curtis claims the five recordings would provide on retrial, but he fails to explain why the recordings would have made any difference.
The probability of a different result, either by court or jury, must be determined by reference to an objective standard, based on all the evidence, old and new; the evaluation of the evidence is not to be undertaken subjectively to determine whether the new evidence would lead a trier of fact to a different conclusion. (People v. Huskins (1966) 245 Cal.App.2d 859, 862.) Curtis's arguments on this issue fall woefully short of supporting his assertion of a different result on retrial. He neither considers all the evidence nor employs any objective standard.
In short, Curtis has offered no cogent argument that the five recordings provided evidence that was not cumulative or a different result was probable on retrial. The trial court did not abuse its discretion in denying Curtis's motion for a new trial.
Because we find that Curtis did not carry his burden on these two issues, we need not resolve the dispute regarding whether the five recordings constituted new evidence under section 1181, subdivision 8.
In addition to rejecting his claim on statutory grounds, we see no merit in Curtis's claim that the denial of his new trial motion violated his due process and fair trial rights under the state and federal constitutions. Curtis offers no meaningful analysis in support of this claim, but generally asserts that the five recordings denied him a meaningful opportunity to argue that Doe's testimony at trial was more credible than her prior statements to law enforcement. Curtis therefore asserts his "due process right to a reliable jury determination of his guilt beyond a reasonable doubt" was "compromised." Even assuming the five recordings constitute new evidence, they, at most, would probe witness credibility, specifically Doe's trial testimony that Curtis did not actually hit her, but instead, was protecting himself when she started swinging at him. There was conflicting evidence on these issues at trial, including Doe's own prior statement to Jordan contradicting several aspects of her trial testimony. Curtis has not demonstrated that inclusion of the new evidence would probably result in an outcome more favorable to him at trial. Indeed, he glosses over portions of the recordings that would negatively impact Doe's credibility and contradict her trial testimony.
For example, Doe testified at trial that she was not dating Curtis and that they were just friends. However, on the recordings, Curtis and Doe clearly discuss their mutual desire to engage in physical intimacy. In addition, on the recordings, Curtis and Doe discuss Doe avoiding having to testify against Curtis and how Doe should act to benefit Curtis. In short, the fact that Curtis did not have the five recordings to use at trial did not deny defense counsel a meaningful opportunity to argue that Doe's testimony at trial was more credible than her prior statements to law enforcement. Indeed, he made just such an argument during closing argument, emphasizing that Doe was a strong willed person who told the truth at trial, but lied to law enforcement. Curtis has not shown that the five recordings would have buttressed that argument beyond the evidence that was presented to the jury. For these reasons, we conclude the trial court did not violate Curtis's constitutional rights by denying his motion for a new trial.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: IRION, J. GUERRERO, J.